4 Human Rights, Global Justice, and Disaggregated States: John Rawls, Onora O'Neill, and Anne-Marie Slaughter

A bstract .   Human rights are urgently important rights that all individual persons may validly claim and that all governments are obligated to respect. According to some philosophers, no government can plausibly claim legitimate authority unless its legal and political system ascribes such rights, and no society can plausibly claim to be just unless it has a legitimate government. John Rawls presents his own version of this conception in the context of his account of the moral basis of a just global system of public law, which he calls the Law of Peoples. According to some of his critics, including Onora O'Neill, not only is the Law of Peoples statist, but also it relies on a false view of the state. O'Neill has developed a new conception of an ideally just global order in which states have fewer, and corporations more, powers and obligations to secure human rights, in contrast to Rawls's conception. Her conception is consistent with Anne-Marie Slaughter's account of the transformation of state sovereignty due to globalization. However, contrary to initial appearances, it is not the case that O'Neill's and Slaughter's views taken together require significant modification of Rawls's conception of human rights. There is no fundamental conflict between Rawls's conception of human rights and Slaughter's account of state transformation. And O'Neill's criticisms of Rawls's view are unwarranted.     

Confucianism,Moral Equality,and Human Rights: A Mencian Perspective

This paper attempts to show the compatibility between Confucianism and human rights, first by revisiting the moral philosophy of Mencius, a key founder of the Confucian tradition, then by reconstructing the Mencian‐Confucian idea of human rights from the perspective of his moral philosophy. One of my central claims is that not only did Mencius acknowledge core human rights—socioeconomic as well as civil‐political—justified by his foundational faith in universal moral equality and human dignity, but he further understood the right to subsistence as an essential part of Confucian‐constitutional rights. Contrary to the widely received notion that in Mencian‐Confucianism the right to subsistence has an overriding value vis‐a‐vis civil‐political rights, I argue that Mencius (and Confucians in general for that matter) never stipulated such a lexical ranking among rights. I conclude by discussing how the type of Confucian moral reasoning that Mencius employs in justifying the moral value of human rights can be re‐appropriated to produce Confucian rights suitable for today. … … … … … …     

Prudence and Constitutional Rights

ABSTRACT . In The Calculus of Consent, Buchanan and Tullock argue for institutional safeguards to ensure maximal benefit for all members of a community against the potential tyranny of the majority. I extend this idea by introducing prudential concerns and argue that they ought to be factored into the decision making that constructs such safeguards. Specifically, I see the safeguarding of prudential concerns for all members of society as a matter that should be secured from the random fate of the political process by constitutional provisions.     

A Response to the British Journal of Industrial Relations Symposium on the Human Rights Watch Report: A Minimum Program for Promoting Collective Bargaining Rights as a Human Right

The publication of Unfair Advantage, a report published by Human Rights Watch (HRW), documents and analyzes how employers routinely violate international human rights standards by depriving U.S. workers of their legal right to organize. In a recent symposium on Unfair Advantage published in the British Journal of Industrial Relations, 7 essays analyzed the strengths and weaknesses of the HRW report from a variety of ideological and theoretical perspectives. Although the scholars who wrote these essays raised a number of important issues concerning Unfair Advantage, they failed to provide any concrete or practical methodologies for using this report to promote the collective bargaining rights of U.S. workers in the early years of the twenty-first century. Thus, the purpose of this paper is to critique these symposium papers as well as to propose a minimum program, on the basis of Unfair Advantage, for advancing the collective bargaining rights of U.S. workers.     

9 Persons: Natural,Functional, or Ethical Kind?

A bstract .   In this paper, I examine alternative views of personhood and how they affect our understanding of life and death. Building on David Wiggins's insight that our concept of person tries to hold in a single focus our nature as a biological being, a subject of consciousness, and a locus of moral values, I argue against views that try to reduce persons to one of these aspects at the expense of the others. Thought experiments that have been prominent in the literature on personal identity are criticized on grounds that they sunder persons from the moral and cultural context in which they appear and ignore an essential relational aspect of persons. I argue for a substantive view of persons that understands persons as "constituted by" but not identical to human organisms, and that treats persons as having essential relational properties. Persons are thus beings whose nature is not determined entirely by their biology or psychology but is, in part, a matter of individual, moral, and cultural construction. I argue that such a view provides the best theoretical grounding to answer the more practical, bioethical questions concerning the beginning and end of life.     

Comments on McClennen's "Prudence and Constitutional Rights"

ABSTRACT . In The Calculus of Consent, Buchanan and Tullock argue, among other things, that institutional safeguards are required to ensure maximal benefit for all members of a community against the potential tyranny of the majority. McClennen extends this idea by introducing prudential concerns and argues that they ought to be factored into the decision making that constructs such safeguards. Specifically, McClennen sees the safeguarding of prudential concerns for all members of society as a matter of distribution that should be secured from the random fate of the political process through constitutional means. His method for ensuring the constitutional mandate is to place the responsibility for achieving this result in the hands of the judiciary. I argue that there are two problems with his solution: (1) it is ahistorical; and (2) it assumes the judiciary is without politics.     

In Defense of the Exclusionary Rule: What It Protects Are the Constitutional Rights of Citizens, Threatened by the Court, the Executive and the Congress

A bstract . The attack upon the judicial rule that evidence seized in contravention of a person's constitutional rights shall be excluded from his trial, regardless how damaging to the prosecution's case—an attack advocated by Chief Justice Burger and President Reagan —rests upon a misunderstanding. This rule, the exclusionary rule , has not resulted in acquittals that would not otherwise have occurred. And it does, and has, protected the innocent as well as the guilty. The rule was fashioned by the Supreme Court of the United States to safeguard constitutional rights. These rights cannot be abridged constitutionally by the executive or the legislature; they can, but should not, be modified by their creators, the Justices, for they exist to check unconstitutional and illegal acts by agents of the State.     

The practical view of employee rights

Advocates of employee rights, relying upon moral and legal perspectives, have used moral appeals and the threat of legal sanctions to persuade managers to act responsibly. Drawing on a behavioral perspective and analyzing interviews and literature about employee complaints, this paper develops the practical view. This view emphasizes employees' perceptions of their rights, as represented by eight broad categories of asserted rights, and the subtle costs that employees can impose when their standards of proper treatment are violated. While important differences between the behavioral, legal, and moral perspectives are identified, a general standards-setting framework is presented that indicates the complementarity of the three perspectives and the advantages of a multidisciplinary combination.     

Muhammad's Conception of Property as A Bundle of Rights

Property was first conceived of as a bundle of rights in early Islam. The legal instrument that crystallised this Islamic conception was the waqf, a legal entity delivering public welfare in accordance with the wishes of a benefactor. Trusts, which evolved in the thirteenth century, have a rationale analogous to that of waqfs, and in fact may have replicated the legal template of waqfs. The finding that waqfs are germane to Islam has ramifications for policies on waqfs in contemporary Islamic societies.     

Opting-Out: the Constitutional Economics of Exit

The central aspect, which makes markets operate differently than governments, is the ability of market actors to "exit" from future interactions. This point is applied to constitutional analysis, with an emphasis on the constitutional possibility of individuals or groups in a society "exiting," wholly or partly, from the political community or from specific institutions within such. Hobbesian and Lockean states-of-nature are sketched using a common framework of some simple games, and the Lockean solution to the danger of tyranny is formalized. This solution is compared to the typical interaction in a market economy, where the possibility of "exit" from future interactions with disagreeable parties introduces severe restrictions on the possible exploitation. This analysis is extended to the political sphere, and it is argued in general terms that a constitutional set-up utilizing a semi-Lockean right to "exit" (e.g., federal structures with rights of secession, voucher systems, etc.) could be an efficient guarantee against sub-optimal solutions and function so as to reduce redistributive conflicts and make welfare-increasing transactions possible.     

The Changing View of Property Rights in Natural Resources Management

Abstract . The social, demographic, technological, and ecological circumstances in the United States have changed since its beginning. Society's view of property rights—i.e., the way resources are to be used—has evolved accordingly. Resource owners’virtually unrestricted right to use their property as they wished disappeared along with the western frontier, pristine wilderness, and abundant natural resources. There is now a strong commitment to preserve what little nature and resource are left. To overcome the problem of abuse or destruction of nature, it is necessary to recognize, first and foremost, that the problem has become institutionalized over the years and, secondly, that humans and natural objects are interdependent and are of roughly equal importance in the biotic community. Protection of nature against abuse therefore requires that nature be granted legal rights on moral grounds, that consequently human decisions and actions must take into consideration their impacts on nature, and that defenders of nature be able to raise its rights in its own name in any administrative or legal dispute.     

Is This What The Democratic City Looks Like? Local Democracy,Housing Rights and Homeownership in the Portuguese Context

This article analyses the creation of a normative framework for the democratic city during the regime change in Portugal in 1975—the answers that were given to the question, ‘What should a city be like in a democratic regime?’ While I critically discuss post‐democracy and its use of post‐foundational contributions, I review the post‐revolution Portuguese constitutional debate, contending that the call for democratization brought by urban popular organizations was answered with a political compromise that exchanged expectations of a participatory city for a commitment to a social rights city, enhanced with a promise of homeownership for urban popular segments. In light of this, in this article I question post‐democratic proposals, arguing that when this approach implicitly establishes equivalence between democracy and ‘the political’, it has difficulties in interpreting how the grammar of democracy is ‘organized’ in conflictual and contingent processes of democratic institutionalization. As an alternative, I contend that a critical debate concerning democracy and the urban must address how democratic expectations of emancipation have been translated into institutions and rights through interwoven and situated processes of politicization and depoliticization that allow both politicization of the urban and the production of consent .     

On Perennial Re-examination of the U.S. Constitution

Abstract . The United States Constitution is still shrouded in myths, clothed in broad terms and garbed with ambiguities. These require constant reinterpretation. If a continuing constitutional convention is thus endemic to the American political system, then is it, as Jefferson said, “a mere thing of wax in the hands of the judiciary”? Justice Jackson wrote that “we are infallible only because we are final,” but it is a maxim of American politics that the Court follows the election returns. In the last analysis, there is a higher court in a republican democracy, the Court of Public Opinion (of which scholars and publicists are the officers) which achieves revision by periodic reinterpretation and re-examination.     

Constitutional implementation

We consider the problem of implementing a social choice correspondence H in Nash equilibrium when the constitution of the society is given by an effectivity function E. It is assumed that the effectivity function of , is a sub-correspondence of E. We found necessary and efficient conditions for a game form to implement H (in Nash equilibria), and to satisfy, at the same time, that , the effectivity function of , is a sub-correspondence of (which guarantees that is compatible with E). We also find sufficient conditions for the coincidence of the set of winning coalitions of and , and for . All our results are sharp as is shown by suitable examples. Received: 15 December 2000 / Accepted: 3 September 2001     

Political Leadership,Conflict and the Prospects for Constitutional Peace

The emphasis in constitutional political economy has been that new rules and institutions can be devised that improve the welfare of a society. Given the number of societies that are infected with political conflict and as a result lower levels of welfare, this paper attempts to analyse why we do not see more constitutional conventions aimed at eliminating conflict. The key idea is that expressively motivated group members may create incentives for instrumentally motivated group leaders such that it leads them to choose conflict rather than compromise. Nonetheless, it is not argued that such a peace is impossible to obtain. This leads to a further question, that if such a constitutional agreement could be found, would the expressive perspective alter the conventional instrumental perspective on the sort of constitutional reform that should be undertaken?     

Accessing the Urban Commons Through the Mediation of Information: The Eliana Silva Occupation,Belo Horizonte,Brazil

This essay demonstrates how mediations (called Dialogues) between the University of Belo Horizonte and the residents of the Eliana Silva Occupation in that city have secured not only the right to urban land and constitutional rights that have been historically violated in Brazil, but also the right to that which is of common interest. The essay speaks to Michael Hardt and Antonio Negri's contention that what is common goes far beyond the provision of public services. This starting point allows us to see that urban occupations are politically empowered, to the extent that poor people consciously violate the Brazilian law governing the right of possession and ownership over urban land through creative and cooperative actions that are undertaken and extended across networks. This essay will focus on the centrality of the struggle to build a common communication platform serving to nourish social ties and sociability among those social actors who share the same human deprivation—lack of access to what should be widely available to all citizens. On the theoretical side, the essay takes Pierre Bourdieu, Bruno Latour and Milton Santos as its guides to understanding how social actors act in the struggle for socio‐spatial coexistence and urbanity.     

公私权关系及其在《宪法》中的体现

现代国家的宪制主要解决了两大问题:一个是国家的合法性问题,即国家的权源问题;另一个是国家的合理性问题,即国家治理的技能问题。而且,宪制的发展与变革也是从"君权神授"的"君主国"国体逐渐向"天赋人权"的"共和国"国体演变的。由此,本人感觉有必要就我国的公私权关系及其在《中华人民共和国宪法》中的体现作一下研究探讨。     

File Sharing,Network Architecture,and Copyright Enforcement: An Overview

This paper provides an overview of Internet file sharing networks and explores the relationship between technological, economic, and legal aspects of file sharing. I chronicle the evolution of content sharing technology since the 1990s and examine the role of network architecture in a copyright holder's choice of enforcement strategy. I also describe how users and developers of file sharing networks have responded to various enforcement tactics. The target audience of this survey consists of economists and legal scholars interested in the technology and economics of file sharing networks and the enforcement of intellectual property rights on these networks. Copyright © 2013 John Wiley & Sons, Ltd.     

Sustainability and legitimacy theory: The case of sustainable social and environmental practices of small and medium-sized enterprises

The aim of this paper is to identify and gain insights into small and medium-sized enterprises' (SMEs) rationales (why) for engaging in sustainable social and environmental practices (SEPs) that influence social and environmental policy and sustainability changes. Specifically, we depart from the predominately quantitative-orientated SEPs literature by conducting in-depth interviews and analysis of owners and managers of SMEs in the United Kingdom within a legitimacy theoretical framework. Our findings from a comprehensive number of interviewees show that SMEs employ a complex mix of both symbolic and substantive SEPs with the aim of enhancing the legitimacy and sustainability of their operations. The results emphasise the strengths of social engagement, reputation and image, environmental embeddedness, industry differentiation and education facilitators. In particular, the paper shows that legitimating strategies can have a dual purpose of being symbolic in nature but also inferring a substantive legitimacy claim. Evidence of SMEs maintaining their legitimacy position stretches further via either a moral and/or a pragmatic standpoint.     

A Little Common Sense: The Ethics of Immigration in Catholic Social Teaching

Modern Catholic social teaching recurs to the idiom of human dignity and human rights. Our moral entitlement to equal respect or consideration, in concert with the ethical ideal of the common good, moreover, justifies preferential treatment for those whose basic rights are most imperiled. Thus states are morally bound to respect and promote the basic human rights of both citizen and resident alien, especially the most vulnerable—and of these, in particular, women and children. Indeed, the duty to protect grounds the subsidiary duty to rescue, for example, through diplomatic initiatives, sanctions, and in extremis, humanitarian intervention in the case of genocide or mass atrocity. Disciples thus see and have compassion, even as compassion becomes a way of seeing. Compassion, then, not only guides them in the fitting application of universal, essential norms, for example, the rights of migrants, but gives rise to existential (personal and ecclesial) imperatives as they come to the aid of wounded humanity.